Ragan Charles v SMP Network Pty Ltd - [2021] FWC 6599

[2021] FWC 6599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ragan Charles
v
SMP Network Pty Ltd
(U2021/10582)

COMMISSIONER HAMPTON

ADELAIDE, 30 DECEMBER 2021

Application for an unfair dismissal remedy – application lodged outside of initial period allowed by the Act – extension of time sought – whether exceptional circumstances – considerations applied – absence of reasonable explanation for much of the delay – merit, prejudice and other factors weighed – on balance, not satisfied that exceptional circumstances existed warranting an extension of time – no extension permitted – unfair dismissal application not validly made and dismissed.

1. What this decision is about

[1] This decision concerns an application by Ms Ragan Charles (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). Ms Charles is seeking compensation.

[2] The application has been advanced on the basis that termination of Ms Charles’ employment with SMP Network Pty Ltd (Respondent or SMP) was effective on 27 September 2021. Ultimately, I have found that to be appropriate.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 27 September 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 19 October 2021.¹ The application was therefore filed 31 days after the 21-day limit. The Applicant requests the Commission to grant a further period for the application to be made under s.394(3) and the Respondent opposes this request. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are exceptional circumstances.²

[4] The Commission has conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Both parties sought and were granted permission to be represented by a lawyer having regard to s.596 of the Act.

[5] Ms Charles provided a witness statement³ on her own behalf. Ms Charles also relied upon a statement of support from a Clinical Psychologist. 4 A statement5 of Ms Susan Nolan, Chief Executive Officer (CEO) of SMP was also provided by the Respondent and Ms Charles and Ms Nolan ultimately gave sworn evidence and were subject to cross-examination.

[6] Ms Charles’ grounds for seeking the extension of time are as follows:

• It was not clear to her if and when her employment was terminated.

• She was not paid for any notice period, or accrued entitlements.

• She had been experiencing a difficult time within her personal life wherein her main focus had been the care and welfare of her four children.

• It was not until she conferred with her lawyer (Mr White) on 8 November 2021 that she received any proper advice on her rights.

• Following receipt of the advice from Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 6599
Decision Date: 30 DECEMBER 2021

CaseChat Overview and Summary

Ragan Charles brought an application against SMP Network Pty Ltd in the Fair Work Commission, seeking a remedy for unfair dismissal. Charles alleged that he had been dismissed without just cause or reason. The dispute centred on whether the application was lodged outside the initial period stipulated by the Fair Work Act 2009 (Cth), and whether an extension of time should be granted due to exceptional circumstances. The court had to determine if the application was made within the statutory timeframe and, if not, whether exceptional circumstances justified extending that timeframe.

The primary legal issue before the court was whether Charles' application, lodged beyond the statutory period for seeking unfair dismissal remedy, could be permitted under the exceptional circumstances provision. The court considered the absence of a reasonable explanation for the significant delay, the merits of Charles' case, potential prejudice to SMP Network, and other relevant factors. The court had to balance these considerations to decide if extending the time limit was appropriate.

After weighing the factors, the court concluded that Charles had not provided a satisfactory explanation for the delay in lodging his application. While the court acknowledged the potential merits of Charles' case and the possibility of prejudice to SMP Network, it was not satisfied that these factors, along with others considered, warranted an extension of time. Consequently, the court dismissed Charles' application, finding that it was not validly made due to the failure to lodge within the prescribed period and the absence of exceptional circumstances justifying an extension.

The court's final orders were that the application for an unfair dismissal remedy was dismissed. The decision was based on the failure to lodge the application within the statutory period and the lack of exceptional circumstances that would justify an extension of time.

Orders